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OTHER VIEWS: Here come the judges, but watch how they’re picked

By The Florence Morning NewsMcClatchy-Tribune

Dec 10 2012 6:18 pm

The South Carolina Legislature is moving to ease some of the state’s judicial backlog by appointing nine new roving judges for the state early next year.

That sounds like good news, but the sudden burst of appointments once again calls into question the state’s method of judicial selection. Plain and simple, it’s controlled, start to finish, by the Legislature.

The judges are nominated by the 10-member Judicial Merit Selection Commission, which is appointed, and hence controlled by the Legislature, then all 170 members of the Legislature vote on the nominees. Public input is limited and maybe not all that effective in the first place.

Six of the 10 members of the JMSC must be sitting members of the Legislature – three from the House and three from the Senate – and the other four don’t always seem that independent, not that it would matter much if they were. A current House appointee to the commission is John Davis Harrell, the brother of House Speaker Bobby Harrell.

To be fair, there is one additional step in South Carolina’s system. Judicial candidates must be “qualified” by the JMSC prior to nomination by the JMSC. This includes taking (and presumably passing) a test on court procedures, and surviving a background check conducted by the South Carolina Bar Association and regional citizen’s commissions appointed by the JMSC.

Various interest groups have complained about the South Carolina system in general, and about its ineffectiveness at selecting judges from certain subgroups – women, minorities, the Pee Dee – but supporters say it beats the alternative: judicial elections. Elective systems – North Carolina picks judges this way – gives the people a say, but it opens the door to any and all candidacies and other possible perversions of the selection process. Recent Supreme Court rulings relating campaign financing, say some critics, have put judicial seats up for sale. An interest group could easily “buy” a judgeship with advertising and marketing, given that most judicial campaigns aren’t well-funded and candidates struggle to gain attention on crowded ballots. A couple hundred thousand – not a big sum compared to the benefits a corporation might reap from certain rulings – could sway many races.

That tips the scales in many minds back to merit selection, but that leads back to worries about secretive “good ol’ boy” systems, like the one employed by South Carolina.

South Carolina is in the majority when it comes to judicial selection. Thirty-three of 50 states use what can generally be called the “merit” selection process. But merit systems vary and critics of the S.C. system say it is more closed than most. Other states involve the governor’s office – the governor appoints, the Legislature confirms – and still others use popular referendums for nomination or first-term recall.

South Carolina’s current system is actually a recent reform. When legislators picked two judges in 1995 who were not qualified – i.e., they flunked the test – outrage led to the creation of the JMSC in 1997.

The JMSC does not release test scores, but is supposed to assure that all nominated are qualified. The problem now isn’t finding qualified candidates. For most seats, there are far more who qualify than can be nominated. The JMSC is limited to three nominations per seat.

That’s where the funny business – insider trading if you will – could come into play. The biggest hurdle to becoming a judge is getting into the final three. It’s the JMSC that makes that choice, with considerable legislative input, of course.

The S.C. system could stand more reform. Involvement by some other body independent from the Legislature – the governor’s office, or an JMSC not handpicked by the legislators – might do the trick.

The chances of that happening?

Not good.

The folks who’d have to initiate such a change are, of course, our state legislators.

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